LEGALLY SPEAKING Occupiers’ Liability
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heather barnhouse BSc, LLB, MBA ase of
012 234 5 fraser milner casgrain City of Calgary / .B.Q.B. 220, a!rmed 2002 ABCA 31 discusses the full extent of the duty owed to patrons of public swimming facilities by its operators.
lifesaving society legal advisor |}~} zHeather is a member !e purpose of this commentary is to furnish lifeguards, instructors, a"liates, and pool operators with some general information which might bear some relevance to an
{of FMC’s Corporate aquatics programming facility. !is is not to be construed as legal advice or opinion.
Commercial group.
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[\ ]OME LAKE PROVINCIAL PARK Heather helps Sikome Lake Provincial Park.
^ _`ome Lake is a man-made swimming
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clients organize lake covering 3.88 acres at the south old sons, David Mc"ueen waded 10-15 end of Fish Creek Provincial Park near their business as feet into Sikome Lake towards one of six skimmer platforms around the perimeter Calgary manned by lifeguards. It has well as draft and of the lake. e skimmers are made of a very shallow gradient with a sand negotiate contracts pertaining to their area of concrete with a side mounted drain inlet bottom sloping to a maximum depth of near the water surface. Mc"ueen put approximately 8 feet. business. She also advises clients with respect to each child on the edge of the platform and stepped up to the top. He looked out to the expanse of the lake opposite the shore completing transactions involving their business. and dove in head #rst, breaking his neck. He was rendered paraplegic as a result of his injuries.
Heather also has experience advising on
d ef gh ijklmf in o pqf hdb bc ir lf h b ls immtu kf h i n v kwixf y bwf kl regulations as well as drafting, reviewing, and abc breach of any duty owed to McQueen as a visitor to the premises? negotiaing clinical trial agreements and ancillary At the trial, Mc"ueen testi#ed that he did not intend to dive when he waded out documents related to clinical research for one of with his boys to the skimmer platform. He further testi#ed that he looked down and could not see the bottom of the lake and thought it was safe, notwithstanding the fact Canada’s largest research-intensive universities. that he had just walked out to the skimmer platform, with the water level no higher than his knees. Prior to his dive, he did not stop to check the water depth; he did not pose for Heather is a member of the Intellectual Property a dive. He was merely on the skimmer platform for a few seconds before he chose to dive Subsection of the CBA. into the very shallow water. Mc"ueen testi#ed that he did not see a “No Diving” sign on top of the skimmer at the time of his dive. Mc"ueen had consumed about 20 ounces of rum and possibly one beer before he went to bed around 4:30 am the previous night. He did not have any more to drink the morning of the incident. A blood sample was taken around noon when he was admitted to the hospital. His blood alcohol level was equivalent to at least 0.148 mg/100 mL. e plainti$ ’s expert’s opinion was that the injuries to Mc"ueen “were the result in the accumulation of errors and mismanagement by the operators of Sikome Lake”. e expert cited inadequacies in lifeguard training and actions, inadequate signage, and errors in platform design and placement as contributing factors to Mc"ueen’s injuries.
6 Medallion © LIVESAVING SOCIETY M ¡¢£ £¤¥¦ §¨ ¨© § §¨ 6 Summer/Autumn 2007 éê êëìí îïðñ LIABILITY (Page 2 of 2) THE LAW: OCCUPIERS’ LIABILITY ACT
e court dismissed the evidence of the plainti ’s expert, » ¼ Alberta, the duty of care owed by an occupier of premises to a
ultimately nding that his propositions and ndings were not
Æ ÁÇ ÈÁ ÉÁÊË Ì visitor on the premises is codified in the ½¾¾ ¿ ÀÁ ÂÃÄÅ Act credible. Each of the categories is discussed below.
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ξ¾ ¿ ÀÁ ÂÃ Î Ï ÀàÐÁÄ ÂÄ Î ÑÂÄ Ç Ò¿ ÊË ÊÎ ÂÓ ÂÃ Ë ÓÁÄÁ ÊÎ ARD TRAINING. rt accepted the evidence Section 5: Í r
presented by the lifeguards with respect to their level of training on his premises to take such care as in all circumstances of the
and qualications. It was held that case is reasonable to see that the visitor will be reasonably safe maintained by each of the lifeguards and their comprehensive in using the premises for purposes for which he is invited or facility-specic inservice training was adequate to ensure the
permitted by the occupier to be there or is permitted by law to lifeguards were properly qualied to perform their duties t the time of the incident with only 15-20 bathers in the lake and three be there.
lifeguards on active duty, the lifeguards were properly positioned
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ÕÖ Í Î¾¾ ¿ ÀÁ Âà ÁÄ Î Ê ¿ Ò ÂÃ Ç Î ÈÉÁ×Ç ÊÁÎ ÊÎ ÒÁľ ØÇÃ× Â Ô Â¾ÊÁÎ to observe and respond to aquatic incidents.
the common duty of care to a visitor in respect of risks willingly
§ ¡ ¢ £ ¤ ¥¦ [\ [ ]\ CEMENT. lainti ’s expert argued that the skimmer platforms, by their design and accepted by the visitor as his.
placement, constituted an invitation to swimmers to approach,
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ÙÖ Í Ñ Ô Â¾ÊÁÎ arning, without more, shall not be treated as climb up, sit, stand, jump, and dive o, and that the defendant, as absolving an occupier from discharging the common duty of occupier of the premises, was negligent in allowing the skimmers to be used in their present design knowing the shallow water care to its visitor unless in all circumstances the warning is depth, when it was known that these would attract people to dive enough to enable the visitor to be reasonably safe.
o them.
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Û ÜÝ Þ Ú ß à à á á e defendant argued that rather than the design of the Ú skimmer platform being faulty, it was Mc!ueen’s judgment, skimmer platform from which Mc!ueen dove. In addition, a considerably impaired by alcohol, which resulted in his injuries. number of depth marking buoys located towards the central part His action of diving head rst from the skimmer platform was of the lake were also present at the time of the dive. A pictorial entirely unpredictable and aorded no opportunity for the sign indicating “No Diving” was located near the lifeguard tower. lifeguards to intervene in a meaningful manner to prevent injury, e physical act of wading to the edge of the skimmer
particularly when he didn’t pose for a dive for any length of time platform should provide a user with very specic information
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prior to executing the dive. ¨ ª« ¬ as to water depth. A reasonable individual wading out to the
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injuries, they must have an opportunity to do so. °± skimmer platform would be cognizant of the shallow water depth
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Û Û âà ã á à Mc!ueen did not know he was going to dive prior to his diving and ommon sense o the skimmer platform. He failed to observe the large sign held that the risk to Mc!ueen was so obvious and apparent, it prohibiting diving which was virtually at his feet. He surely must would be obviously known to anyone. e fact that he chose to have known the depth of the water near the skimmer platform as dive into very shallow water was not due to any failure on the part he had just waded out from the shore to a depth of no more than of the defendant to adequately warn patrons of inherent risks.
18-20 inches before he stepped up onto the platform. Mc!ueen simply acted unreasonably.
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While both parties agreed that the presence of skimmer ä
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Þ à æ Þ Þ Ú Þ Þç à Þ Ú platforms would constitute an attraction to bathers; they could å safely jump from the platforms. Jumping and diving are dierent duty of care owed by an occupier of a premise to any visitor, the activities having dierent risks and dierent purposes. Expert legislation also recognizes that while visitors are on the premises, evidence for the defence testied that jumping from the surface they must exercise common sense and good judgment. As of the top of the skimmer platform was low risk whereas diving long as the occupier has taken reasonable precautions to guard was much riskier having potentially catastrophic consequences. against visitors injuring themselves while using the premises, Skimmer platforms in and of themselves were not found to the occupier need not be a guarantor of safety. e Act is not
be inherently dangerous; rather, ividual activities must be intended to exclude every possible risk of injury from active monitored to ensure no unsafe behaviour is demonstrated in sports or recreation. In this case, the risk of injury to Mc!ueen
individual circumstances was assumed solely by him. e signage and supervision provided £¦¢º \ ACY OF SIGNAGE. Although Mc!ueen failed at Sikome Lake in face of the attraction of the skimmer platforms to see the warning signs, a “No Diving” sign stencilling 3.5-4 were adequate to discharge the legal duty owed to Mc!ueen.
è LIVESAVING SOCIETY 7 M ¡¢££¤ ¥¦ Summer/Autumn 2007